Justice served: as the Supreme Court closed the door on sodomy laws, it may have opened a door for other causes--including gay marriage and the ensuing antigay backlash. (Courts).
There was little in Kennedy's biography hinting that he would one day become one of the high court's most eloquent--and effective--gay rights champions. In the 6-3 majority opinion striking down Texas's ban on same-sex sodomy, handed down June 26, Kennedy declared that the law criminalizing gay sex "demeans the lives of homosexual persons." Tyron Garner and John Lawrence, the petitioners in the Texas case, "are entitled to respect for their private lives. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter."
Kennedy's passionate language in Lawrence v. Texas is reminiscent of his majority opinion in Romer v. Evans, the 1996 case overturning a Colorado law banning gay fights legislation. In that 5-4 ruling the justice proclaimed that a state could not make gay people a "stranger to its laws." Kennedy now has applied two pillars of constitutional law--the rights to equal protection and due process--to gay men and lesbians, claims that the court called "facetious" in Bowers v. Hardwick, the 1986 decision upholding Georgia's sodomy law.
In a concurring opinion, another Reagan appointee, Justice Sandra Day O' Connor, who voted with the majority in Bowers, wrote that the Texas law violated the 14th Amendment by subjecting same-sex couples to prosecution for conduct that was legal for heterosexual couples. "A law branding one class of persons as criminal solely based on the state's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution," she wrote.
Court watchers were stunned by the sweep of the decision. David Garrow, author of Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade, called Lawrence revolutionary. "This is a trashing of Bowers and the reasoning of [Justice Byron] White and [Justice Warren] Burger in that case. Kennedy is saying that Bowers was wrong the day it was decided and that history has proven it to be wrong."
The gay rights victory puts antigay activists on the defensive forever, Garrow says. Antigay evangelists "Jerry Falwell, Pat Robertson, and James Dobson are now in the same league as [segregationists] Lester Maddox and Strom Thurmond" after Brown v. Board of Education, the 1954 decision desegregating public schools, he says. "There's no getting around the fact that this changes the political and legal landscape forever."
Handed down as gay pride parades and festivals were going on across the country, the ruling brought jubilation to the already spirited celebrations. In San Francisco's Castro neighborhood, for instance, Gilbert Baker, who created the rainbow flag 25 years ago, hoisted a U.S. flag over Harvey Milk Plaza as cheering throngs danced in the streets.
At the same time, celebrants were girding for future battles. The ink on the ruling had barely dried before activists on both sides were grappling with profound political implications. The ruling's most immediate impact is to eviscerate same. sex sodomy laws in four states, including Texas, and same- and opposite-sex laws in nine others. Courts will no longer be able to use taws criminalizing same-sex intercourse as a cudgel against gay people in cases dealing with a wide range of issues, such as adoption by same-sex parents and workplace discrimination.
But the focus of the crossfire is on marriage. As Justice Antonin Scalia fervently pointed out in his dissent, Kennedy's opinion appears to leave a door open for an equal protection challenge to state bans on same-sex marriage. Antisodomy statutes violate the Constitution, Kennedy wrote, by seeking "to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals."
"The phrase 'whether or not' strikes me as an invitation," Garrow says. "What Kennedy is saying is that arbitrary notions of morality can't be legitimate state interests of legislation. There has to be something more tangible at stake. Same-sex marriage would seem to fit that test."
But Erik Jaffe, author of a friend-of-the-court brief arguing against the Texas law for the Republican Unity Coalition, a gay-straight political alliance, isn't convinced. "The ruling certainly contains room to make solid arguments for marriage rights," says Jaffe, who served as a clerk for Justice Clarence Thomas in 1996. "But there is also plenty in it to distinguish privacy rights from marriage rights. I think Kennedy was careful to say 'This ain't that' but also 'This could be that.'"
Grasping the enormous stakes, Scalia took the unusual step of reading his dissent from the bench. Adopting the antigay language of far-right groups that submitted briefs, Scalia wrote that the majority "has largely signed on to the so-called homosexual agenda" aimed at "eliminating the moral opprobrium that has traditionally attached to homosexual conduct.... Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe is immoral and destructive."
Scalia contended that the majority opinion lays the legal foundation for same-sex marriage. "This effectively decrees the end of all morals legislation," he declared.
Sure enough, leaders of the Republican Party and the religious right jumped on Scalia's interpretation of the majority opinion. Hailed as a moderate when he replaced Trent Lott as Senate majority leader last year, Frist endorsed sodomy laws. "I have this fear" that the ruling could create an environment in which "criminal activity within the home would in some way be condoned ... whether it's prostitution or illegal commercial drug activity," he said on the June 29 episode of ABC's This Week.
Frist then endorsed a constitutional amendment banning same-sex marriage. "I very much feel that marriage is a sacrament, and that sacrament ... has been defined as between a man and a woman," he said.
Even with powerful religious right interest groups behind it, such an amendment faces an uphill battle. Passage requires approval by two thirds of the members of both the House and the Senate in addition to ratification by the legislatures in three quarters of the states.
"The decent folk in the Republican Party just want the issues of sodomy and marriage to go away," says David Boaz, executive vice president of the libertarian Cato Institute. "But the gay community should be prepared for a backlash. This ruling is going to stir up the anger of the indecent folks in the party who will use it to beat up on the Democrats on same-sex marriage. This is just the start of the fight."
Justice Kennedy, however, brought at least one historic battle to a permanent close. "Bowers was not correct when it was decided, and it is not correct today," he wrote decisively. "Its continuance as precedent demeans the lives of homosexual persons."
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|Publication:||The Advocate (The national gay & lesbian newsmagazine)|
|Date:||Aug 19, 2003|
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